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Shone Steed,*Fn1 v. New Jersey Department of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 27, 2012

SHONE STEED,*FN1 APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.

On appeal from the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 22, 2012

Before Judges Payne and Simonelli.

Appellant Shone Steed appeals from the February 14, 2011 final agency decision of respondent New Jersey Department of Corrections (DOC) upholding the decision of a hearing officer to impose disciplinary sanctions for committing prohibited act *.011, possession or exhibition of anything related to a security threat group (STG), in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

At all times relevant to this appeal, appellant was an inmate at New Jersey State Prison (NJSP). While sorting mail on January 27, 2011, Senior Corrections Officer P. Rodriguez discovered two manila envelopes containing "The Five Percenter," a newspaper of the Five Percent Nation of Gods and Earth's (Five Percent Nation). The DOC has identified the Five Percent Nation as an STG. The envelopes were addressed to appellant with the return address of "The Five Percenter." Rodriguez confiscated the envelopes and searched appellant's cell. During the search, Rodriguez discovered a book entitled "Knowledge of Self," which had a Five Percent Nation symbol on the front cover and contained Five Percent Nation references. He also discovered three manila envelopes containing "The Five Percenter" newspaper and addressed to appellant with the return address of "The Five Percenter." Special Investigations Division Investigator S. Harrison from NJSP confirmed that the confiscated materials were related to the STG Five Percent Nation.

Appellant was charged with committing prohibited act *.011, and was served with notice of the charge on January 28, 2011.

At a hearing on February 7, 2011,*fn2 he received substitute counsel, and declined to call witnesses or confront adverse witnesses. He pled not guilty, and argued that when he was an inmate at Northern State Prison (NSP), he was permitted to have Five Percent Nation material, he purchased the material through authorized institutional channels, and received it by mail at the prison. However, SID Investigator Harris from NSP confirmed that NSP did not permit inmates to have Five Percent Nation material. In addition, appellant admitted that he had received a prior *.011 charge for having Five Percent Nation material, indicating his knowledge that possessing such material was prohibited. Hearing Officer Jantz found appellant guilty of the charge, and sanctioned him to 15 days' detention, with credit for time served, 270 days' administrative segregation, and 270 days' loss of commutation time.

On February 8, 2011, appellant administratively appealed, raising the same arguments he raised before Jantz. In addition, he argued for the first time that the confiscated materials were religious materials protected by the First Amendment,*fn3 the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C.A. § 2000cc, and New Jersey caselaw. On February 14, 2011, Assistant Superintendent Anderson affirmed Jantz's decision. This appeal followed. On appeal appellant raises the same arguments he raised before Anderson.

We reverse an agency's decision only where it is arbitrary, capricious, unreasonable or unsupported by credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005). An adjudication of guilt of a charge against an inmate must be supported by "substantial evidence." N.J.A.C. 10A:4-9.15(a). "Substantial evidence" means "'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" In re Pub. Serv. Electric & Gas Co., 35 N.J. 358, 376 (1961) (quoting In re Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)); Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010). The term has also been defined as "evidence furnishing a reasonable basis for the agency's action." McGowan v. N. J. State Parole Bd., 347 N.J. Super. 544, 562 (App. Div. 2002). The substantial evidence standard permits an agency to apply its expertise where the evidence supports more than one conclusion. See In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.) ("Where there is substantial evidence in the record to support more than one regulatory conclusion, 'it is the agency's choice which governs.'" (quoting De Vitis v. N. J. Racing Comm'n, 202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102 N.J. 337 (1985))), certif. denied, 127 N.J. 323 (1990).

Here, the DOC's decision was not arbitrary, capricious or unreasonable and is supported by substantial evidence in the record. Appellant possessed Five Percent Nation material. The Five Percent Nation has been designated as an STG based on its history of violence and gang-related activity within prisons. Fraise v. Terhune, 283 F.3d 506, 516-18 (3d Cir. 2002). As such, prohibiting appellant's possession of Five Percent Nation material does not violate the First Amendment. Id. at 518-19. Nor does it violate RLUIPA. RLUIPA provides that [n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person--(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. [42 U.S.C.A. § 2000cc-1(a).]

A burden is "substantial" when it "puts substantial pressure on an adherent to substantially modify his behavior and to violate his beliefs." Washington v. Klem, 497 F.3d 272, 280 (3d Cir. 2007).

Prison safety and security are "undisputedly compelling state interests" in the context of RLUIPA, and RLUIPA permits these compelling state interests to outweigh an inmate's claim to a religious accommodation. Cutter v. Wilkinson, 544 U.S. 709, 717, 722-23, 125 S. Ct. 2113, 2119, 2123, 161 L. Ed. 2d 1020, 1031, 1035 (2005). Thus, a prison can prohibit an inmate from possessing Five Percent Nation material because such material is STG-related and poses a security threat within the prison.

Furthermore, although appellant is prohibited from possessing Five Percent Nation material, this does not place substantial burden on his religious exercise. He is not restricted from and has alternate means of engaging in Five Percent Nation beliefs and practices. He is permitted to possess other material, such as the Koran and Bible, which the Five Percent Nation utilizes in its teachings. Fraise, supra, 283 F.3d at 519. Thus, prohibiting appellant from possessing Five Percent Nation material does not place a substantial burden on his beliefs.

Affirmed.


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